Public Bill Committee

[Mr. Greg Pope in the Chair]
MC 04 Battersea Dogs & Cats Home
MC 05 Royal Society for the Protection of Birds

Clause 128 ordered to stand part of the Bill.

Clause 129

Byelaws for protection of MCZs in England

Question proposed, That the clause stand part of the Bill.

Nick Ainger: It is a pleasure to serve under your chairmanship on this beautiful morning, Mr. Pope. I have a couple of questions on clauses 129 to 134, which includes byelaws in Wales to protect marine conservation zones. Again, I have been approached by the Countryside Council for Wales, which would like to know whether it would be possible for byelaws to control movement, not just in MCZs, but in the areas immediately outside them. That is with particular regard to the disturbance of seabirds and marine mammals. The MCZ may well have been set up to protect them, but they do move. I am thinking, for example, of the gannets that nest on Grassholm and similar areas. The CCW seeks information and clarity on whether byelaws can be made that are not limited to the geographic location of the MCZs but cover areas immediately outside or some distance away from them. It is seeking to protect a particular species and avoid disturbance.

Huw Irranca-Davies: I shall both disappoint and reassure my hon. Friend. He shows the importance of getting the areathe scopeof the MCZ right, based on the best scientific evidence. Clause 129 sets out the byelaw provisions for the protection of MCZsfor example, to restrict the movement of animals and vessels, to restrict speed and to restrict the anchoring of vessels in an MCZ. There may also be byelaws to restrict the killing or taking of animals and plants in the zone. However, that is within the zone. It is important to get the zone and the network of zones right, so that movement, whether migration of species in the marine environment or the movement of birdlife, can be taken into account. This is a question of designating the geographic limits not only of the individual zone, but of other zones that relate to it. That is where the network becomes important.
As I said, I have to disappoint my hon. Friend in some ways, as we cannot take account of things outside the zone. This clause has to do with the byelaws that apply within a zone. That is where the importance of getting the zone right comes into play. The hope is that if the zones are set up in the right way, they will take account of the factors to which he referred, to the satisfaction of the CCW and others.

Nick Ainger: I seek further clarification. The problems that we are discussing are often seasonal problems, particularly for seabirds when they raft up and so on at certain times of the year. They are mobile species and there may be rafts of seabirds a mile or two away, or perhaps even 10 miles away. My hon. Friend the Minister is saying that because there is a specific geographic designation to the MCZ, a byelaw could not apply outside that specific geographic location.

Huw Irranca-Davies: My hon. Friend is absolutely right, but in respect of the seasonal aspect, it is perfectly conceivableI am not drawing up the MCZs at the momentthat an MCZ could be designated to cover the overlap area that he is talking about and that has byelaws applying to it that relate to the seasonal nature of particular migratory patterns and so on. In effect, we would have an extended MCZ, but byelaws would restrict movement at certain seasons of the year. It is important that the underpinning science takes account not only of the restricted area but of a slightly wider area, in order to reflect such concerns.

Question put and agreed to.

Clause 129 accordingly ordered to stand part of the Bill.

Clauses 130 to 138 ordered to stand part of the Bill.

Nick Ainger: On a point of order, Mr. Pope. Clause 139 refers to the offences of intentionally or recklessly killing or injuring animals in MCZs and so on. I realise that many members of the Committee are concerned about the disturbance element. Would it not be more appropriate to discuss the disturbance element when debating clause 139 rather than clause 140? I seek your guidance, Mr. Pope, because although the offences are listed in clause 139, the relevant amendment is to clause 140.

Greg Pope: I am grateful for that point of order. As the hon. Gentleman said, we will come to that amendment in the next clause. That will be the correct place for us to have the appropriate debate. It is not necessary to have that debate now, given that we can have it in a few seconds.

Clause 139 ordered to stand part of the Bill.

Clause 140

Offence of damaging etc protected features of MCZs

Andrew George: I beg to move amendment 39, in clause 140, page 95, line 8, leave out kills or injures and insert kills, injures or disturbs.
The amendment would add the word disturbs to subsection (2). Although many conservation bodies welcome the general offence of damaging the protected features of the MCZ, there is a desire to explore the possibility that the provision as currently drafted is insufficient to protect the features of MCZs as intended. The worry is that the provision will provide a loophole unless disturbs is added, as features and animals that should be protected may be disturbed; they will not be as well protected as was originally intended. As drafted, the general offence still does not cover disturbance to the features of the MCZ. Disturbance can be very damaging, but it is much harder, on a case-by-case basis, to prove that that damage exists than that disturbance has occurred.
The clause should refer to disturbance of any animal in an MCZ that is a protected feature of that MCZ. As the Minister will know, that would also have the benefit of bringing the Bill into line with the provisions for sites of special scientific interest and those in the Wildlife and Countryside Act 1981.
There is concern that marine mammals that are identifiedthis is the critical factoras a protected feature of an MCZ, such as cetaceans, dolphins, porpoises, seabirds and sea ducks, will be disturbed and move away from the source of the disturbance. That may cause them to suffer because they will be unable to feed adequately or will come under increasing stress, and the likelihood of their continuing to thrive will diminish. Such things can have a lasting negative impact on the animals ability to grow, reproduce and survive.
Disturbance can be caused by a wide variety of marine activities, such as fishing, dredging, marine construction, and oil and gas exploration and production. In some cases, it can even be caused by certain recreational activities, such as swimming, diving and boating. There are even cases where cetaceans have been disturbed by boats coming too close to them. On Second Reading, I argued that there is a case for looking carefully at the impact of sonar, particularly in the case of cetaceans, and the Minister may like to reflect on that. We would not want to constrain the activities or training carried out by our Ministry of Defence vessels, but it is worth looking at the impact that some of those activities might have on cetaceans. For seabirds, disturbance can be particularly damaging at certain sensitive times. For example, when birds are feeding, roosting, breeding or moulting, they will be more sensitive to the effects of disturbance.
It is important to note that including disturbance in subsection (2) does not turn all activities that could result in disturbance into offences. If the disturbance affects only animals that are not named features of the MCZ, or if it will not significantly hinder the achievement of the MCZs conservation objectives, no offence will have been committed. The amendment is not, therefore, a simple, all-encompassing provision that makes any kind of disturbance an offence.
It is welcome that clause 129 can be used to prohibit disturbance to animals or plants of any description in an MCZ. That is an improvement on previous nature conservation byelaws and it is broader than the inclusion of disturbance in the general offence would be, because it refers to animals or plants and does not rely on the subject of the disturbance being a named feature of the MCZ.
Although the ability to control disturbance in MCZs through byelaws is very useful, some conservation bodies do not consider the provisions to be sufficient as currently drafted. In particular, byelaw provisions under the Bill extend to only 12 nautical miles. Without byelaw-making powers, there is still a need for protection of offshore waters from activities that cause disturbances that pose a risk to the MCZ objectives. Therefore, the system clearly needs to be complemented with the general offence in waters beyond 12 nautical miles.
There is a concern that it is hard to prove that disturbance has occurred and the provision will be particularly hard to enforce, as I have mentioned, beyond 12 nautical miles. However, it will be equally hard to prove that disturbance has occurred in contravention to a specific byelaw, unless the byelaw imposes a blanket ban on a particular activity thought to be capable of causing a disturbance. In many cases, it would be disproportionate to completely ban an activity on the grounds that, if done recklessly or irresponsibly, it could cause a disturbance. Enforcement in the marine area, particularly in offshore waters, is clearly going to be challenging, but that is a universal problem for all offshore activities. I know that organisations which are concerned about strengthening the clause do not believe that that should be used as an excuse to avoid regulation in the marine environment.
I hope that the Minister will appreciate that the purpose of the amendment is to both probe the Governments intentions and to seek clarity. Given the current drafting of the clause, there is a deep and justifiable concern that a disturbance of the type I have described could have a knock-on effect and damage those features that the MCZs have been created to protect. They will be damaged not simply through the killing or injuring of any animal, as the animals may well, as it were, experience their own demise, or be significantly injured by the kind of disturbing activities that I have described.
Do all the Government agencies that advised the Minister on the drafting of the clause, particularly Natural England, take the view that, as currently drafted, it is sufficient to provide adequate protection to animals in designated MCZs? Are there more exacting demands in having to prove that an animal has been killed or, in law, having to prove a definition of injury, rather than the offence of disturbance? That will clearly require a much higher evidential level of definition. I look forward to the Ministers response. This is an important area, which clearly needs to be explored further.

Richard Benyon: This is an interesting amendment, which comes down to the definition of the word disturbedthe previous word in clause 140 is recklessly. Disturbed has a very wide descriptive meaning. I am constantly disturbed by the thoughts and actions of my childrenand sometimes by those of my colleaguesbut that is not relevant in this context. We have to think about the impact on an MCZ, because we could be limiting actions in an MCZ in the wrong sort of way.
I am inclined to support the hon. Member for St. Ives, provided that we do not damage the kind of activities that we want to see in MCZs. For example, tourism, even eco-tourism, could in certain circumstances be described as disturbing wildlife in the marine environment. Certain sustainable fishing activities, such as recreational angling, could be permissible in or close to a MCZ, but they could be described in a pedantic following of the letter of the law as damaging. I support the hon. Gentlemans intention and look forward to the Ministers words on the impact that it will have, because I do not want unintended consequences in the protection provided to MCZs.

David Jones: I want to draw the Ministers attention to the representations that I have received from the CCWI am sure that the hon. Member for Carmarthen, West and South Pembrokeshire will be pleased to hear that he does not have the monopoly on correspondence with that body. The CCW is an adviser to the Welsh Assembly Government on the Bill and other matters. It takes the view that clause 142 should be expanded to include disturbance of an MCZ. Its point, which the hon. Member for St. Ives has also made, is that that would be more intellectually coherent, because it would create a degree of uniformity with offences relating to SSSIs. Since we are talking about conservation of sensitive siteswhether marine or land-basedit is appropriate to introduce intellectual coherence into the Bill. I am interested to hear what the Minister has to say about it.

Nick Ainger: I will not repeat what the hon. Member for Clwyd, West has said. We have both received the same communications, and I am sure that the hon. Member for Brecon and Radnorshire has also received correspondence from the CCW.
I am chairman of the Pembrokeshire coastal forum, which was set up nearly 10 years ago as a secretariat to bring together the public and private sectors, statutory agencies, individuals and charities to look at coastal issues in Pembrokeshire. At our AGM on Monday, I asked members whether the issue of disturbance should be in the Bill. They have all been avidly watching the progress of the Bill and all said reference should be made to disturbance.
The Pembrokeshire coastal forum includes the outdoor charter groupa range of 26 companies offering activity-based holidays on the Pembrokeshire coast. They have come together to produce the outdoor charter, which is aimed at protection and minimising disturbance. They are not just companies that take tourists round Ramsey island to see porpoise and seals. There are also organisations offering surfing and coasteering, field study council peopleanyone who is involved in activity on the coast. It is a voluntary charter, and it has been self-policed and self-regulated surprisingly well, but the charter group admits that even its members occasionally cause unnecessary disturbance, which is sorted out between them.
The problem is that there will be literally hundreds, and at times thousands, of other individuals on the coaston jet skis, for examplewho are not there under the guidance of one of those companies, and they can, and do, cause serious disturbance. The charter group feels that the voluntary code, which has been worked out over the years and appears to be working well, should be given some teeth, so that it can be used to regulate those individuals or groups not currently under the guidance of the signatories to the outdoor charter and so that enforcement can take place. It feels that we need to do more on that disturbance issue.
I know that that is not on the face of the Bill and am sure that the Minister will say that it can be included in byelaws, but I want an assurance that that matter will definitely be taken seriously, because disturbance can be just as damaging as the injuring, or even killing, of a marine mammal. If there is constant disturbance from jet skis during the seal pupping season, not only could pups die as a result, but that area might not be used by seals as a pupping site again. Disturbance is just as important an issue as the killing or injuring of marine animals, or any sort of animal. I would be grateful if the Minister were to respond positively and assure people across the board that disturbance is seen as an important issue, because people feel that it should be in the Bill.

Roger Williams: The Times reports today, hon. Members will be pleased to note, that Migaloo, a white humpback whale, is on its migratory path from the Antarctic to the Great Barrier reef for the breeding season and has been spotted off the coast of Australia. The Australian environment ministry has said that no one may approach within 500 m of the whale or fly lower than 600 m above it. I draw Members attention to that to demonstrate that the question of disturbance is one not only for the British Government, but for Governments across the world who are trying to protect their marine animalsyes, I have been lobbied by the CCW, but I thought that I would broaden the debate and give it an international flavour. [Interruption.] I have put a smile on Members faces this morning.
The management of MCZs could include details on what would be considered disturbance and what could be considered injury, or some other type of activity. I completely support the amendment and draw to the Committees attention to CCWs views on the issue. The proposal has been imposed in other parts of the world, so it would not be new for Britain, but it is something from which we could gain experience and which we could implement in this country through the Bill.

Ann McKechin: Good morning, Mr Pope. I welcome the contributions that have been made in this interesting debate.
Four features that need careful examination define the debate: one is the definition of disturbance, as the hon. Member for Newbury has mentioned; the second is what level of fines is appropriate; the third is what is proportionate to the offence; and the fourth, which is quite important, is the standard of proof.
I draw hon. Members attention to subsection (2)(b) which specifies that someone is guilty of an offence under the clause if, at the time of doing the act in question,
the person knows, or ought to have known, that the feature to which the act relates is in, or forms part of, an MCZ.
That is a high standard of proof, relating to what we call, in law, mens rea. It is necessary to show the mental intention behind the act, as well as the physical act itself. That high standard of proof would, by definition, limit the prospects for prosecution, in comparison with the much lower standards of proof found in byelaws.
The Joint Committee that considered the Bill stated in paragraph 79 of its recommendations:
We recommend that the Government insert the general offence referred to in the Marine Bill White Paper of damaging or destroying any species or habitat or other feature, for which a site has been designated an MCZ.
The Government have done precisely that. We have reinstated the general offence provision, which will help to prevent deliberate and reckless acts of damage to a marine conservation zone.
I want to explain why we and the Joint Committee did not want to widen the general offence to include disturbance. Acts of disturbance will be an occasional and serious problem, as my hon. Friend the Member for Carmarthen, West and South Pembrokeshire has pointed out, but they are fundamentally different from deliberate or reckless damage. It is important that the Bill reflects that, because, as my hon. Friend has said, many incidents of disturbance are sorted out without prosecution by voluntary codes. That is somewhat different from incidents involving reckless damage or death. There is a difference in the definition, depending on the incident.
The matter comes down, first, to the difference in severity of the impact of what is done. Disturbance might, for example, be caused by people straying too close to a group of animals through innocent curiosity, although I think that if I saw a humpback whale I would move well back. Alternatively, the disturbance might come about because of an organised wildlife watching trip or through the use of machinery that emits a loud noise. A single act of disturbance is likely to have a temporary effect and will often be entirely accidental. In contrast, intentional or reckless acts of damage are likely to have longer-term and more permanent effects.
Secondly, what constitutes disturbance will depend on the protected features and conservation objectives of each MCZ. Byelaws provide a proportionate and effective mechanism to target specific activities in local areas and accordingly are the right way to control acts of disturbance in a MCZ, as opposed to areas of special scientific interest, which are in highly protected areas. MCZs often cover a wider spectrum of protection needs. That is why clause 129(3)(e) specifically states that byelaws may be made to prohibit or restrict the
killing, taking, destruction, molestation or disturbance of animals of plants of any description in the MCZ.
To give an example of that, an MCZ might be designated to ensure the protection of sea birds. The byelaw provisions in the Bill will allow us to provide targeted protection against disturbance and to impose movement restrictions at certain times of the year. Breeding seasons and nesting periods, which various hon. Members have alluded to this morning, are also relevant. Restrictions would thus be the minimum necessary and would be drafted to specify the offences and to be clearly understood by everyone.
Thirdly, byelaws will often be the most effective means of protecting a site from the general offence. That is because byelaws create strict liability offences. Prosecution under a byelaw will depend on proving not that an anticipated result occurred, but that a prohibited activity, such as movement within a protected area, took place. In contrast, prosecution under the general offence would depend on being able to prove that the defendant intentionally or recklessly carried out a prohibited act that significantly hinderedor could have significantly hinderedMCZ objectives. That is, again, a high level of proof. The hurdle is lower for proving breach of a byelaw.
We are fully committed to preventing disturbance within MCZs, where there is scientific evidence to suggest that such an approach is required. I do not want to pre-empt the scientific evidence by suggesting that all conservation zones will need to be protected from disturbance, but I will reassure hon. Members on various points raised in this debate.
The hon. Member for St. Ives correctly pointed out that the byelaws extend to only 12 nautical miles. However, clause 124 contains a duty on public authorities to ensure that they must do their best to further the achievement of conservation objectives, including those relating to the impacts of sonar and other activities. Activities beyond 12 miles are generally licensable and controlled through the mechanism in part 4 of the Bill. I assure him that sonar can be regulated through the licensing provisions and the nature of conservation byelaws. All public authorities, including the Ministry of Defence, will be subject to the byelaw restrictions in inshore areas and are under a duty in inshore and offshore waters to further conservation objectives. Under the Bill, nature conservation bodies can offer guidance on that.
The hon. Member for St. Ives also mentioned Natural Englands evidence. Natural England has stated that in the vast majority of cases in SSSIs, writing to people to advise them that they may be in breach of byelaws and subject to a fine is the most effective way to deter further breaches.

Andrew George: On the effectiveness of existing regulations, will the Minister clarify whether the introduction of the Bill, as drafted, will either diminish or remove existing levels of protection available through the Wildlife and Countryside Act 1981, as amended? I understand that last year a conviction was successfully brought against individuals in a case involving the disturbance of cetaceans off the Kent coast. It would be interesting to know whether the Bill will lessen the ability of authorities to obtain such convictions.

Ann McKechin: I assure the hon. Gentleman that the Bill will not remove protections to that effect contained in existing legislation. It is certainly not our intention to weaken existing protections.
My hon. Friend the Member for Carmarthen, West and South Pembrokeshire mentioned the good work of the Pembrokeshire coastal forum. I confirm that the Marine Management Organisation must consult such groups under clause 136(6) and (7). It is certainly our intentionit is implicitthat when it comes to considering byelaws, local organisations on the ground should be fully involved in the consultation on what is best. Their local knowledge will be valuable in that regard.
Accordingly, I believe that the Bill, as it stands, provides a proportionate and flexible way of dealing with disturbance and the right level of sanctions. I hope that on the basis of what I have said, the hon. Member for St. Ives will feel able to withdraw his amendment.

Andrew George: I am grateful to the Minister for her reply. She drew attention in her response, as I did in my opening remarks, to clause 129 and the provisions available there for the creation of byelaws to add further protections in respect of the intentional and reckless disturbance of animals that contributes to their demise. That is reassuring.
A lot of the bodies that are concerned that the Bill, as drafted, does not contain a general offence as proposed in the amendment are worried because achieving the attachment of protection from reckless and intentional disturbance will now depend on the successful introduction of byelaws, with all the various hurdles over which byelaws must inevitably go, including the Secretary of State. The hon. Member for Newbury rightly emphasised that we are not talking aboutas the Minister described, I think, in her responsesimple, innocent curiosity without the intention to disturb or contribute to the demise of an animal, but about a reckless or intentional disturbance that would have a lasting impact on an animal. I hope that the Minister will acknowledge that a case similar to one that I referred to in an earlier interventionI shall not mention names, as the matter is on the recordcould be dealt with through byelaws, if, for example, there is an intention to protect particular cetaceans within an MCZ.

Ann McKechin: I welcome the hon. Gentlemans comments; he has made some good points. To reiterate what we have already said: we see the MMO as a proactive body. We do not think that there will be any reluctance to create byelaws; the body will have a duty to do so under conservation objectives. Byelaws are implicitly the means to achieve such ends. We anticipate the MMO carrying out exactly the type of activity that the hon. Gentleman has discussed and dealing with the need for protection, which will be the core of its work. I hope that I have reassured the hon. Gentleman.

Andrew George: I think that all parties want to see such an organisationa proactive body that is keen to be responsive to the concerns expressed by stakeholders, including conservation bodies that wish to uphold the principles and objectives of designating an area an MCZ. In the case off the Kent coast, a conviction was successfully enforced on 16 April 2008, and it is worth reflecting on that example.
In the previous year, the two gentlemen who were convicted for that offence had been involved in trying to lift a bottlenose dolphin out of the water by holding on to its dorsal fin. The animal was not injured or killed, but the impact on it was long lasting. The police were called and the men were arrested and charged with recklessly disturbing a dolphin under the Wildlife and Countryside Act 1981, as amended. Our amendment seeks to ensure that reckless and intentional disturbance can ideally be made a general offence, because once a marine conservation zone has been designated, it is clear which features and animals are to be protected.
I have listened to the Minister, and I hope that she will take on board the concerns expressed. Providing that we can be reassured, as the Bill goes through its later stages, that there will be little or no obstruction to legislating for the kind of byelaws that we need to provide that kind of protection, I am happy to have had the debate and probed the issue and to have received the assurances that the Minister has offered so far. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 140 ordered to stand part of the Bill.

Clause 141

Exceptions to offences under section 139 or 140

Richard Benyon: I beg to move amendment 18, in clause 141, page 96, line 2, at end insert
(3A) It is a defence for a person who is charged with an offence under section 139 to show that that person took all reasonable precautions and exercised all due diligence to avoid the commission of the offence..
It seems at times that we are coming at the Bill from different directions. I do not apologise for that because this is all about getting the balance right. I have been persuaded by many arguments made by some of the organisations lobbying usboth greens and those more concerned with socio-economic factors, which shows the nature of the Bill; we have to ensure that we get the balance right.
In moving the amendment, I hope to debate whether it is appropriate for a breach of a byelaw or order made on an MCZ to be a strict liability offence. Offences of strict liability are those crimes that do not require awareness of one or more elements of the guilty act; therefore, to be convicted, the defendant need not have intended to commit the offence or known that what they were doing was an offence. As the Bill stands, MCZs will clearly have an impact on navigation. They will not necessarily be marked with physical aids, as we discussed earlier this week, so there will not by any buoys or markers on the sea and perhaps not a recording on the relevant navigational charts. In the absence of such demarcation, it seems short-sighted not to include a defence for a person who takes all reasonable precautions and exercises all due diligence to avoid committing the offence. The language reflects that used in clause 104 on marine licensing. Proposed new clause 141(3A) does not need to apply to clause 140 because that relates only to acts committed intentionally or recklessly.
The longer I look at the clause, the more concerned I become about the sea-fishing defence in clause 141(4)(a)(i). I know, Mr. Pope, that you do not want me to start a debate that belongs to a later amendment, but this is important. It seems incongruous to whack a yacht or a ship that inadvertently breaks a byelaw in an MCZ with the full force of the law, regardless of it having done all in its power to avoid committing the offence, while those who are fishing and may not have taken reasonable steps to avoid damage, appear to have an instant defence. That is inconsistent. I firmly believe that the majority of fishermen will do all that they can to avoid the offence, but there may be one or two, and they might not be our own fishermen, who come into our waters and damage an MCZ. It is important to look at these matters, and, perhaps in the context of later aspects of the clause, clarify the position when there is no intention to damage an MCZ.

Ann McKechin: When I first saw the amendment, I thought back many years ago to when I was studying law at university and the wonderful case from, I think, the 19th century. While a chap was away at sea, a law was changed at Westminster. He came back, went onshore and duly committed the said statutory offence. He gave as a defence the fact that he could not have known about the change in the law. That was absolutely correct. Regrettably, the finding was that ignorance of the law was not an excuse, although it is probably a pretty good plea in mitigation.
To return to the amendment, most activities in the sea are carefully regulated. Some, however, have traditionally been considered to have such a low impact on the environment that there is no need to regulate them. We now know that in some circumstances even these activities can have an adverse impact on conservation objectiveswe are talking in the main about recreational activities such as boating, jet skiing, which my hon. Friend the Member for Carmarthen, West and South Pembrokeshire mentioned earlier, and diving. The byelaw provisions for this part of the Bill are intended to enable us to regulate those activities as necessary.
Offences under MMO byelaws will be strict liability offences. We had an interesting discussing on the previous amendment about proof, successful prosecutions and the consequent deterrent effect. This is consistent with treatment of some other offences elsewhere under the Bill such as byelaws made by inshore fisheries and conservation authorities and other legislation for regulatory offences. Examples of possible offences are speeding, anchoring in a prohibited area or taking prohibited species when diving. I entirely understand where the aim of the amendment and the concerns raised by the Royal Yachting Association. We do not want to make criminals of those who take all reasonable steps to comply with the law.

Linda Gilroy: When the hon. Member for Newbury was making the case for the amendment I could see that he was trying to strike a balance. He drew attention to a certain inconsistency with other parts of the Bill. Rather than reject it outright, would my hon. Friend the Minister take the amendment away and have another look at it?

Ann McKechin: I hope that my later comments will reassure my hon. Friend. If an offence was not clear or a person cannot reasonably have known he was committing the offence, the chances of securing a conviction would be very low. It would be very unlikely to be in the public interest to prosecute. At the same time, we do not think that the Bill is the right place to include due diligence provisions, because it is better addressed through the secondary legislation itself.
The power to make byelaws is broad enough to enable the MMO to provide a due diligence defence in specific byelaws where that is appropriate. Other relevant areas of legislation have already taken this approach. For example, some harbour byelaws and the byelaws for lakes such as Windermere both specify the geographical area in which they apply, similar to the way in which the MMO byelaws will, and contain a due diligence defence. I can tell the hon. Gentleman and my hon. Friend that if a due diligence defence is necessary and appropriate in a byelaw, it will be included. I hope that provides sufficient reassurance for the hon. Gentleman to enable him to withdraw his amendment.

Richard Benyon: In a sense, the debate on this amendment will be balanced by a debate that we shall shortly have on another amendment. It is important to lay down a marker showing that there are legitimate activities that take place in our seas and that there are industries that we want to encourage for a whole range of reasons. We want to be absolutely certain that we are not creating an unfair and inconsistent law. The Minister made a good point about developing this in secondary legislation. I am nervous about setting that precedent through the Bill, because it is subjective and dependent on all sorts of other factors. However, I shall withdraw the amendment so we can move on to the next debate. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Nick Ainger: I beg to move amendment 35, in clause 141, page 96, line 11, at end insert
(c) the act occurred on the seaward side of the 0-6 nautical mile fisheries zone in a location where European vessels have fishing rights..
The amendment stands in my name and the names of my hon. Friend the Member for Reading, West and of the hon. Member for Broxbourne. It touches on a very contentious issue that was raised on Second Reading by Members on both sides of the House. The Bill contains a blanket defence for causing damage within an MCZ if that was the result of sea fishing and if there was no reasonable way of avoiding it. I think that everyone was surprised that the Bill contains such a broad defence. Many organisations have contacted us to raise their concerns and have acted constructively to try to address the issue, which is what my amendment, too, seeks to do. We recognise that, at this stage, no substantial changes can be made in areas covered exclusively by the common fisheries policy. However, the amendment, or something similar, would address the situation in inshore fishing areasthe nought to 6 nautical mile zonesand in 6to 12 nautical mile areas with no track record of foreign vessels being allowed to fish.
My amendment might not be worded perfectly, but I think that the Minister understands the need to address the problem. Marine habitats have been drastically damaged by some sea fishing activities. We have mentioned in previous debates the effect of scallop dredging in Cardigan bay, but there are many other examples around the UK of the activities, often not of British fishermancertainly not of British inshore fishermenbut of fisherman from other countries, that have devastated habitats, not just of other species, but of their target species. Such areas are, in effect, deserts. I could give other examples from around the world, such as the Grand Banks off Newfoundland, where over-fishing removed a whole stock that for centuries provided massive amounts of fish for northern Europe and north America.
My amendment would make it clear that the blanket defence is not acceptable and that sea fishing has to be compliant with the requirements of the MCZs. We could address the problem by limiting the CFP to specific areas. Although the amendment might not be worded perfectly, I hope that the Minister will respond positively.

Andrew George: I want to comment on the primary objective in the identification of an offence. The thinking behind exempting fishing from prosecution might have been that, given that the purpose of fishing is to target a particular species, or species in a mixed fishery, it would be difficult to prove that damage to a feature or animal within an MCZ was either intentional or the result of reckless behaviour on the part of the people using the fishery. Would the hon. Gentleman like to respond to that in relation to mid-water trawling, for example? He has mentioned scallop dredging, but what about fishing activities such as mid-water trawling, which are clearly intended to target a particular species, but in which there is no intentionality or recklessness to damage an MCZ feature through that activity?

Greg Pope: Order. I gently remind the Committee that interventions must be brief and to the point.

Nick Ainger: I appreciate the hon. Gentlemans point. Certainly, mid-water trawling should not cause problems on the sea bed, but he knows as well as I do that some techniques cause significant damage to the sea bed. Some forms of trawling use a chain, which churns up the surface of the sea bed, causing enormous damage to areas of sea grass and maerl. I accept that certain techniques should not cause damage; they are fine, and are not a problem. It is the techniques that do cause damage that are a problem. The argument about reasonableness is interesting, because, often, alternative techniques could be used. I recently saw a demonstration of people fishing for razor fish, or razor clamsthis will be a short digression, Mr. Popeby passing an electric current over the sea bed. For some reason, that causes them to pop up, and they are then harvested without any damage to the sea bed. There are therefore other techniques for targeting particular species.
Returning to my amendment, we need to address this issue, because the blanket defence is too widely drawn. I am sure that we can come up with a better wording, but if we do not address this issue, we risk undermining the concept of MCZs, because commercial fishing is likely to cause the most damage within them, and if we allow this widely drawn blanket defence, we risk undermining the whole process.

Charles Walker: I rise to support the amendment. I served on the Joint Committee on the Draft Marine Bill, and it was of great concern to me that while we had the best intentions of conserving marine areas and sites of special scientific interest and protecting them from over-exploitation, we were operating under the aegis of the European common fisheries policy, which would allow European fishermen to continue trawling those areas, creating mayhem and destruction at will.
I am extremely pleased that the hon. Gentleman has tabled the amendment, because we are in a position to protect not only inshore areasnought to 6 miles from the shorebut areas that are 6 to 12 miles from the shore, where there is no traditional access for European fishery vessels. The Bill currently provides too much of a blanket defence. Anybody who fishes in the marine conservation zones will be able to say, There is no other method or way that I can do it, but Im terribly sorry that I have caused this damage and taken non-target species. In a sense, one could drive a coach and horses through this piece of legislation. If MCZs are to mean anything, they have to provide sanctuary and safety for the species, plants and corals within them.
Of course, we do not want to create a situation in which nothing can happen in MCZs and no types of fishing can occur in them. We need to ensure that sustainable fisheries that do not cause damage are allowed to continue, because if MCZs are to have the support of the public and the communities who border them, we have to allow those communities to derive some commercial benefit from them. We also have to strike a balance between commercial fishing and low-intensity recreational fishing. It is more than possible for recreational fishing to take place in the areas under discussion without causing damage. Of course, the captains of boats that embark on recreational fishing will need to ensure that their anchors do not drag through areas of special interest and cause damage, but that is manageable. Naturally, anyone who derives a sustainable living from conservation zones will want to ensure their future integrity.
I will not try your patience, Mr. Pope, because I do not want to stray too far from the amendment. If I do, please rule me out of order, but I do not think that I will do so. We accept that MCZs will provide important nursery areas for endangered species. For example, we have a growing bass fishery around our shores, but we need to ensure that there are places where bass can breed in relative safety. There is a danger in that it is difficult to have a nursery area where commercial fishing takes place, because, even though the bass may not be the targeted species, they will end up in the nets of fishing trawlers and will ultimately be discarded. The bass may go back into the sea, but they will be dead. We therefore need to make sure that the MCZs provide nursery areas for endangered species that can then go on to populate the surrounding areas, which will be of benefit to commercial fishermen. The amendment tabled by the hon. Member for Carmarthen, West and South Pembrokeshire therefore offers a win-win situation.
In conclusion, we need to think globally, but act locally. We are globally aware. For example, the hon. Member for Brecon and Radnorshire, which is in south Wales, not New South Wales, is very concerned about whalesthat was very tortuouson all sorts of levels. At a time when the World Wide Fund for Nature and others are bringing to our attention the parlous state of tuna stocks around the world, and the need to protect them and to provide safe areas for them to breed where they cannot be persecuted, it would be a rum deal if this country could not create a few MCZs that provide the necessary levels of protection for our own marine species to breed in safety. As I have said, they will be able breed in safety, the young will grow, and they will then be able to populate the wider area to the benefit of the species, to the benefit of animals that prey on the species and to the benefit of commercial fishermen. I support the amendment, and even if the Government have to go away and think about it, I hope that they will return on Report with something that we can all support.

Alan Whitehead: If a small plane took off from Southampton airport, flew over the New Forest national park and dropped a large net in the middle at tree-top height in order to catch pigeons to sell in the restaurants of Southampton, and in doing so uprooted a load of trees and caught thrushes, blue tits and starlings, and then returned to Southampton airport, emptied the catch, discarded all the thrushes, blue tits and starlings, took the pigeons to the restaurants, apologised for the fact that it had uprooted a lot of trees, but said that that had been necessary in order to catch the pigeons, there would be a national outcry. There might also be a headline in the local paper asking why the trees had been uprooted.
That is exactly what we appear to be enabling to happen, in a nautical sense, between nought and 6 miles in MCZs off our shores, but because we cannot see it in the way that I have just described, our attention may not be as concentrated on it. I accept that there are areas outside the 6-mile zone where it is difficult to take action. However, if we can state in the Bill that it is not a defence in the nought to 6-mile zone for someone to say that they churned up the seabed in pursuit of fishing, we will have done something very positive for the sound passage of the Bill.
Even if the wording of the amendment is not exactly right, I urge my hon. Friend the Minister to pay close attention to what it says, because it is right. If he is able today at least to say that he will consider the matter and perhaps return at a later stage of the Bill with something that works as far as the purpose of the amendment is concerned, hon. Members on both sides of the Committee will be reassured that the Bill will be as good as it can be when it reaches the statute book.

Russell Brown: I rise to support my colleagues and the amendment. However, I can tell you, Mr. Pope, that I will not be as elaborate and descriptive as my hon. Friend the Member for Southampton, Test in making the case. The point that he made is absolutely valid, although obviously we are considering the nautical and marine aspect of what he described. I am anxious about the matter. As other hon. Members said, we must address the issue of a blanket defence. In supporting the amendment, I recognise that it is never easy to convince our good colleagues on the Front Bench that an amendment is 100 per cent. spot-on and that we should win the case. However, if we are sincere and genuine about the value of marine conservation zones, we must ensure that whatever else is in the Bill, we are not doing something that will undermine the very idea behind the Bill.
Certain aspects of the clause seem somewhat anomalous. In view of that, I shall echo the sentiments of my hon. Friend the Member for Southampton, Test and hope that if Ministers do not accept what has been proposed, they will at least take the issue away for further serious consideration, because it is a serious issue.

Andrew George: The amendment clearly implies that the geographical target is between the 6 and 12-mile zone, unless I have misunderstood it, yet many of the comments so far relate to areas within the 6-mile zone. I want to make it clear that we are talking specifically about the 6 to 12-mile zone being affected. I want to understand why the amendment would not deal with any area either within the 6-mile zone or beyond the 12-mile zone.

Russell Brown: The hon. Gentleman is correct. I shall finish by re-emphasising to the Ministers that if they are not minded to accept the amendment, I sincerely hope that they will take the issue away for further serious consideration at a later stage.

Richard Benyon: One frustration of the Bill is that we could end up securing and protecting large areas of our seas from our own fishermen, but fishermen with historic fishing rights from abroad will be able to come in and fish more or less as they please. This matter must be seen in the context of CFP reform. We have to reach an understanding across Europe that the only way successfully to manage fisheries is to control them. A much greater degree of control of our seas out to 12 miles must be the ultimate aim of CFP reform as we approach 2012.
One solution that must have crossed Members minds would be to remove subsection (4), but I understand why such an amendment has not been moved. I have heard informally that the Minister will say that the clause must remain part of the Bill because its provisions are a fundamental part of European law, and that the Government do not want to contravene it. We want the Government to assure us that they have heard our serious concerns and are taking steps to secure MCZs from the few fishermen who might be inclined to misbehave in those areas. We should not protect our marine areas only from our own fishermen; those from other parts of the EU who enter an MCZ and break the law by damaging the area should be guilty of a criminal offence.

Charles Walker: Does my hon. Friend agree that if that is not the case, the Bill will be nothing more than a few nice ideas, and that it will remain so? Our fishermen will be forced to sit on their hands, and there will be a great sense of animosity as European vessels plunder the conservation zones.

Richard Benyon: We must not put all fishermen in the same bracket. We shall come later to an amendment tabled by the hon. Member for St. Ives that refers to coastal communities. Many coastal communities are hanging on by their fingertips, so we should be protecting those people in a vast social endeavour in order to secure their viability.
My hon. Friend the Member for Broxbourne is right that our fishermen could be restrained; they want to fish in an entirely proper fashion, and they want their children and their grandchildren to become fishermen and harvest the seas in a sustainable fashion. The risk is that restrictions are being placed on them, but not on fishermen from abroad with historic fishing rights. It is vital that the Government clarify the matter.

Andrew George: I wish to add a few remarks to this important debate. It is a subject to which I drew attention on Second Reading. We need to balance what we are trying to achieve in the Billits primary purpose is the promotion of marine conservationand ensuring that our coastal communities, particularly those that depend upon the fishing industry for their commercial future, are maintained. It is must be done with care.
The amendment clearly does not address the sentiment expressed by those who are promoting it. From the geographical point of view, if one wants to ensure that fishing is not exempted from the provisions of the clause, the intentionthe sentimentmust be to ensure that they are applied as widely as possible. It should go from the coast to the median line, or even out to the 200-mile limit. I understand and entirely sympathise with the sentiment behind the amendment. I am sure that the Minister will say that the CFP would clearly come into play, and a lot of the intentions would need to be achieved through international, member-state-wide, European negotiation. However, simply restricting the measure to the 6 to 12-mile zone, as the amendment would, would be rather odd. Perhaps we will have the opportunity to come back to the issue.
A view that that has underpinned many of the remarks that have been made is that the fishing industry is of one opinion on everything, but there is a lot of conflict among fishermen regarding different techniques. For example, scallop dredging is clearly in conflict with lots of other fishing activities.

Linda Gilroy: I hope the hon. Gentleman agrees that continental fishermen, like our own fishermen, have a great interest in conservation and they are increasingly co-operating. Does he think that the sort of set-up that we are trying to bring about with the Bill prepares us for those sorts of discussions with other European countries?

Andrew George: I think that that is right. The intention must be to ensure that such negotiations draw out the best views from other member states. Some in the fishing industry say that the use of scallop dredgers and heavy beams is like heavily ploughing an area of land again and again.

Charles Walker: Does the hon. Gentleman accept that the amendment would allow the promotion of best practice in MCZs? Perhaps we will have to help certain fishermen to change their methods, and we should support them. Our seas are under huge threat, and if we are to have a voice at international level, we have to be seen to be making progress in those parts of the ocean where we can influence fishing practices.

Andrew George: I agree and have no difficulty with that. When the Minister responds, perhaps this afternoon, I should like some reassurance that we are talking about the provision of byelaws, which are currently available to sea fisheries committees, to police the conflict between different fishing techniques and to take into account the impact of one fishing technique on the marine biodiversity of an area. It is important that the provisions focus on the most destructive and least selective techniques, so we need to look at the clause again.
I return to the point I made in an intervention on the hon. Member for Carmarthen, West and South Pembrokeshire. In bringing fishing within the provision, one has to demonstrate that the activity is reckless or intentionally damaging, which is the most difficult thing to do. Damage to the marine environment is caused by certain fishing activities and techniques, which the fishing industry fully acknowledges, but we need to establish that the intention is to cause damage. I do not think we can do that. It is a worthwhile debate, but I hope it can be balanced.

Huw Irranca-Davies: It has been a worthwhile debate. The issue was raised extensively on Second Reading by a number of Members, and it has now been raised by seven hon. Members in major speeches and interventions in this debate. I understand what they are saying.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at One oclock.